Benge's Adm'r v. Fouts

• Decision Date: 26 March 1915
• Citation: 174 S.W. 510,163 Ky. 796
• Parties: BENGE'S ADM'R v. FOUTS. BENGE'S ADM'R v. CREECH.
• Court: Kentucky Court of Appeals

174 S.W. 510

163 Ky. 796

BENGE'S ADM'R v. FOUTS.

BENGE'S ADM'R v. CREECH.

Court of Appeals of Kentucky.

March 26, 1915

Appeal from Circuit Court, Clay County.

Separate actions by Kitty Fouts and Anna Creech against E. J Benge's administrator. Judgments for plaintiffs, and defendant appeals. Reversed, and causes remanded for new trial.

Hickman & Wells, of Chariton, Iowa, and D. K. Rawlings and G. G Brock, both of London, and Rawlings & Wright, of Manchester for appellant.

W. E. Faulkner and H. C. Faulkner, both of Barbourville, J. W. Stivers and D. W. White, both of Manchester, and H. C. Faulkner, Jr., of Barbourville, for appellees.

SETTLE J.

In each of these actions there was a recovery in the court below by the appellee of a verdict and judgment for $7,500 against the appellant, as administrator of the estate of E. J. Benge, deceased, and the administrator has appealed from each of these judgments.

The decedent, Miss E. J. Benge, died childless and intestate November 12, 1911, in Clay county, where she was then domiciled. Shortly after her death the appellant, George A. Young, was appointed and duly qualified as the administrator of her estate. The decedent was born and reared in the state of Iowa, from which state she came to Indiana, and after a residence there of 3 or 4 years, removed to Clay county, this state, bringing with her about $2,000, inherited from a deceased relative in Iowa. For several years she taught school in Clay county. Being a woman of good business capacity, she saved the greater part of the salary earned in teaching, and kept the same, together with the money she brought with her to this state, profitably invested. About the year 1870 she invested her savings in a tract of land in Clay county and began merchandising on a small scale, using a part of her residence as a store for her goods. With the profits arising from this business she purchased from time to time additional lands adjoining the tract upon which she lived, until she became the owner of several hundred acres. In the meantime her mercantile business grew until she was compelled to erect a storehouse and warehouse for its accommodation. At the time of her death she was the owner of a very considerable estate, both real and personal.

The two actions out of which these appeals grew were instituted in the Clay circuit court. To prevent confusion we will first state the facts set out by the petition in the action of the appellee Ann Creech.

The petition contains four paragrpahs. In the first paragraph it is, in substance, alleged that on November 1, 1874, the appellee, who was then a young woman, at the request of the decedent, E. J. Benge, became an inmate of the home and entered the employ of the latter as a housemaid, helper in the store and on the farm, the services rendered by her under such employment consisting of work as a clerk and saleswoman in the store, the performance of household duties, and labor on the farm, such as is commonly required of men rather than women; that under such employment appellee remained with and rendered for the decedent the services mentioned from November 1, 1874 down to August 27, 1893, a period of 18 years, 9 months, and 26 days; that for the labor and services thus performed by appellee the decedent, both at the time they began, and repeatedly during their continuance, promised that she should be reasonably compensated by her, and that the last promise so made by the decedent was "within the two years last past, and within two years before the death of the said E. J. Benge, when the said E. J. Benge, in consideration of the services aforesaid, agreed and promised this plaintiff to pay to her within a short time thereafter the full value of said services, and for all of said services, and to pay for same within less than one year thereafter"; that the services performed by her during the 18 years, 9 months, and 26 days were reasonably worth $400 per year, amounting in the aggregate to $7,528, no part of which, except about $15 per year, or $283.55 in the aggregate, had been paid, which left due her for her services covering the time mentioned $7,244.65, for which she prayed judgment.

In paragraph 2 it was, in substance, alleged that between August 27, 1893, and November 12, 1909, the decedent resided near appellee, and was much of the time in poor health; that it was her habit to send for appellee and require her personal attendance in nursing and taking care of her, which services appellee always performed, and, in addition, did for her much housework. This paragraph contained averments like those in the first paragraph as to promises on the part of the decedent to reasonably compensate her for these services, and that the services were reasonably worth $25 per year, or $405.20 for the 16 years, 2 months, and 15 days between the dates mentioned; but that no part thereof had been paid. For this $405.20 judgment was also prayed.

In the third paragraph compensation was claimed for services rendered the decedent by appellee in nursing and caring for her during an illness lasting from November 12, 1909, to July 3, 1910, 231 days, alleged to be reasonably worth $5 per day, $1,155 in the aggregate, judgment for which was asked. This paragraph also alleged, as did the others, that the services were rendered upon the promise of the decedent, repeatedly made down to within the 2 years before her death, that appellee should be reasonably compensated therefor.

In the fourth paragraph a recovery was sought for services similar to those mentioned in the third paragraph, claimed to have been rendered by appellee for the decedent at intervals between July 3, 1910, and November 12, 1911, the date of the decedent's death, this period embracing 189 days, and including the last illness of the decedent. It was likewise alleged in this paragraph, as in the others, that the services mentioned were rendered at the decedent's request and upon her promise, repeatedly made, to reasonably compensate appellee therefor, and that the services were reasonably worth $5 per day, or the aggregate sum of $920. The entire amount claimed in the petition was $9,724.65.

The petition in the action brought by Kitty Fouts contains two paragraphs, each seeking a recovery for services rendered the decedent similar in character to those sued for by Mrs. Creech, those mentioned in the first paragraph having been performed, as alleged, between March 28, 1885, and December 11, 1907; that the services were rendered upon the promise of the decedent to reasonably compensate her therefor, and this she repeatedly promised to do, the last promise being made within a year of her death, which occurred November 12, 1911; that from March 28, 1885, until October 28, 1896, a period of 11 years and 7 months, her services were reasonably worth $300 per year, or $3,475 in the aggregate; that from the latter date to October 28, 1902, 6 years, her services were reasonably worth $600 per year, or $3,600 in the aggregate; and from October 28, 1902, to December 11, 1907, 5 years, 1 month, and 13 days, they were reasonably worth $800 per year, or $4,095.55 in the aggregate. It was admitted, however, that these amounts were to be credited by $341.25, paid by the decedent from time to time during appellee's performance of the services sued for.

In the second paragraph it was alleged that between December 11, 1907, and November 12, 1911, the date of the decedent's death, appellee from time to time rendered the same character of services for the decedent, which were reasonably worth, as a whole, $98. This paragraph also alleged repeated promises on the part of the decedent to reasonably compensate appellee for the services, beginning with the first of the services, and continuing down to within 2 years of the decedent's death. The entire amount claimed in the petition was $10,937.80.

After interposing a demurrer to each of the petitions, which were overruled, to which appellant excepted, he by answer filed to each of the petitions traversed the averments thereof, and pleaded the statute of limitations. May 13, 1913, nearly a year after the institution of the actions, each of the appellees asked leave to amend her petition, to which appellant objected. The court, however, allowed the amendments to be filed, and to this ruling appellant excepted. The amended petitions are alike in terms and as to matter, except the difference in the periods of time covering the services of the appellees, respectively, and difference in the amounts sued for, respectively. In order that their purpose and meaning may be understood, we here insert that of the appellee Ann Creech, omitting its formal parts.

"Plaintiff Mrs. Ann Creech, for amendment to her original petition and to each paragraph thereof, says that when she went to serve the deceased, E. J. Benge, as set out in the petition, the said E. J. Benge agreed to and with her to pay her reasonably and well for all her services and for her companionship, aid, and society, or to provide for her in her last will and testament a devise of her property, more than the full value of her services; that she served the deceased under this agreement for some four or five years, as set out in the petition, the said agreement and understanding between the plaintiff and the deceased having been renewed from time to time, when the deceased brought to her residence one Lizzie Philpot to serve the deceased with this plaintiff; that thereupon the deceased entered into an agreement to and with this plaintiff and the said Lizzie Philpot that, if they two would continue to serve the deceased as the plaintiff had been serving the deceased, she would make a last will and testament, and would devise to them, the plaintiff and the...